Welcome to our April 2017 newsletter. It’s hard to believe that its April already! Spring is finally here and it’s set to be a busy season of events for us.
On 5 May 2017 we host our first Harrogate HR Forum at Rudding Park. Aimed at HR professionals and business owners in the Harrogate area, the session will deal with tackling employee performance issues. If you would like to register, please email Laura at firstname.lastname@example.org
On 11 May 2017 sees us host our seminar on Social Media: Risks and Opportunities. This event will walk you through the double-edged sword of social media. We’ll cover how to tackle employees misbehaving on social media and protecting the business and Cathy Burns from YourStory will cover the benefits of social media for growing your business and brand. If you would like to register, please email Lauren at email@example.com
We will host our Mock Employment Tribunal on 27 June 2017. The full day session will enable you to experience a tribunal hearing play out in front of you, presented by a real employment judge, barristers, the Clarion employment team and witnesses played by actors. The session is a valuable learning experience for all managers and HR professionals and is always a popular event in our calendar. There is a cost of £120 to attend. If you would like to register, please email Laura at firstname.lastname@example.org
This month’s bulletin covers the latest case law developments on employment status, discrimination and notice periods.
HMRC Employment Status Assessment tool
As we have reported in recent newsletters, employment status is definitely a ‘hot topic’ at present, with various cases coming from the ‘gig economy’ that have questioned the difference between an employee and a worker. The tests that are used to determine employment status from a legal standpoint and by the HMRC are similar, but not exactly the same. It is important to get both right, not least because treating someone incorrectly for tax purposes could result in a hefty bill for unpaid tax or national insurance contributions.
The HMRC has recently launched a new tool that you can use to help determine employment status of an individual for tax purposes. It involves you working through a number of questions about the way that the individual works. The information that you put into the tool is not sent to the HMRC, it is just for you to assess the situation. However, the HMRC do state that they would stand by the outcome from this tool if there was any dispute over the employment status of an individual.
The tool can be accessed at https://www.tax.service.gov.uk/check-employment-status-for-tax/setup.
As a note of caution, the tool is not definitive and should not be relied upon to determine employment status from a legal perspective as this is very fact-specific. If you have any queries in respect of assessing an individual’s employment status, do not hesitate to contact us.
Can Religious Symbols be banned?
A recent ruling from the Court of Justice of the European Union in two cases has hit the headlines of the popular press. The cases were Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions  and Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers  and they both involved Muslim employees wearing a hijab.
In the Achbita case (a case from Belgium) the lady was a receptionist in a company which had a policy that no employees were to wear religious or political symbols. She told her employer that she wanted to wear the hijab. She was told that she could not, as it was contrary to company policy. She insisted on wearing a hijab and was dismissed as a result. The Belgian Court asked the Court of Justice to determine whether this amounted to direct discrimination.
The Court of Justice held that this did not amount to direct discrimination. Direct discrimination occurs when someone is treated less favourably due to a protected characteristic (in this case it would be religion). Achbita was not treated less favourably because all employees, of all religions, were not allowed to wear religious symbols.
The question that was not referred to the Court of Justice was whether this amounted to indirect discrimination. This is when there is a provision, criterion or practice (in this case it would be the policy that no religious or political symbols can be worn), whichputs a group with a particular protected characteristic at a particular disadvantage. It is to the detriment of an individual and it cannot be justified.
It is possible that Achbita could have won this argument if it had been put forward. The requirement not to wear any religious symbols is more difficult for some religious groups. The question would then be whether the requirement was reasonable and justifiable.
In the Bougnaoui case (a French case) the claimant was an engineer. Her job involved her visiting client premises, and a client objected to her wearing a hijab. She was asked to remove it, she refused and she was dismissed. The French courts asked the Court of Justice if the requirement of the customer that visitors to the site should not wear a religious symbol could be an occupational requirement.
An occupational requirement is anessential requirement to enable the individual to perform their job. For example, this could be requiring a female employee to do a job that involves giving intimate care to a female patient. The Court of Justice ruled that the customer request was not an occupational requirement. The Court was not asked to rule on whether this situation amounted to direct or indirect discrimination.
The cases have now been referred back to the national courts to apply the ruling of the Court of Justice. However, the interpretation of the popular press has been to write headlines suggesting that employers can ban religious symbols in the workplace.
Our recommendation would be to exercise caution andonly ban an item of religious dress if you can justify doing so with reference to an occupational requirement. Such a justification might not be easy to argue.
- Do not ban any items of religious dress without good reason
- We strongly recommend that you discuss any proposed bans with us before putting them in place, to ensure that you will not face a costly discrimination claim
Drawing an inference of discrimination
Continuing on the theme of discrimination, there has been an interesting case relating to sex discrimination. In Talbot v Costain Oil, Gas & Process Ltd & Ors  the employee was a female engineer, the only woman working in a group of men. She had been told when she was recruited that things need ‘shaking up’. However, she was criticised for being too aggressive, and for spending too long working on things that were unimportant.
After 12 weeks she was dismissed, and she was escorted from the site. She made claims of sex discrimination and harassment, identifying 17 different instances which she said had occurred and were related to her sex. The Employment Tribunal dismissed her claims, finding that she was unable to show that the instances related to her sex.
The Employment Appeal Tribunal has ordered the Tribunal to look again. When deciding whether discrimination is occurring there is a need to look at the totality of what is happening. When all of the allegations are added together is it reasonable to conclude that the reason for what is happening is discriminatory?
- If an employee claims discrimination, these should always be investigated. Find out everything that has happened/is happening and see if the different issues add together to form an overall discriminatory attitude.
- Do not focus too much on one specific issue. On its own, one issue might not be discrimination. However, added together there could be discrimination.
Is incompetent handling of a grievance discrimination?
Another case which shows us the importance of looking at the full picture is The Chief Constable of Kent Constabulary v Bowler . Bowler was a Police Constable and had passed his exams for promotion to the rank of Sergeant. He took a role ‘acting up’ as Sergeant and was hopeful of full promotion. However, his line manager changed and he then argued that his opportunities for promotion were thwarted in a number of ways. Eventually, he raised a grievance about the way he had been treated, claiming it was discriminatory on the grounds of race.
The Detective Chief Inspector who heard the grievance concluded it was unfounded. The DCI found that there was no evidence that those who had made decisions about Bowler’s appointments were racist.
Mr Bowler issued a claim for race discrimination.
The Employment Tribunal found that the grievance had not been handled appropriately, and that this amounted to less favourable treatment on the grounds of race. However, the Employment Appeal Tribunal has ordered it to look again at the facts. Although it was certainly true that the grievance had not been handled well, and there was a lackadaisical attitude from the investigator, this did not necessarily mean that this was discriminatory. There was a need to look at the whole situation, and consider whether there was discrimination or not.
- Always take allegations of discrimination seriously. Investigate them thoroughly. If you conclude that there has been no discrimination report this back to the employee clearly explaining the reasons for your conclusions.
- If a formal grievance is raised you must follow the Acas Code of Practice: Disciplinary and Grievance Procedures. Contact us if you are unsure what this entails.
When does notice start?
The importance of thinking ahead when writing a contract of employment is emphasised in the case of Newcastle upon Tyne NHS Foundation Trust v Haywood . Haywood was informed that she was at risk of redundancy. Her birthday was on 20 July, and she turned 50 on this day. When she turned 50 she was entitled to enhanced pension terms.
Haywood went abroad on holiday on 19 April, returning on 27 April. On 20 April, her employer sent her a letter by recorded delivery and ordinary post, and an email to her husband’s email account, terminating her employment with three months’ notice, on 15 July 2016 She did not read either until she returned from holiday on 27 April.
The question to be decided was when her notice had been given. If it had not been given until 27 April, when she became aware of it, then she was entitled to the enhanced pension terms. If it was given on the date it was sent, then she was not entitled to an enhanced pension.
The Court of Appeal ruled that the notice was given on 27 April. There was nothing in her contract of employment explaining how notice would be given, and hence she received notice when she became aware of it.
- You could specify in the employee’s contract of employment how termination can be given. If you wish to do so, please contact us to discuss the appropriate wording.
- Unless there is a contractual provision saying otherwise, notice is given when the employee becomes aware of it.
When can you dismiss an employee on long term sick leave?
Managing long term sickness is always difficult, and a recent case has emphasised some of the difficulties that employers face. In O’Brien v Bolton St Catherine’s Academy  a teacher had been absent for over a year. She had been attacked by a pupil at the school and, although her physical injuries were not serious, she was suffering significant psychological injury.
The school asked to meet with her to discuss a possible return to work, but she would not attend the meeting as she was worried it would upset her to be back at the school. She completed a questionnaire, but referred the school back to her GP when asked when she might be able to return to work. The GP was unsure about a possible return date, and hence a process of dismissal started. After the employee was dismissed she appealed, and at this stage produced a fit note which suggested that she might be fit to return in the near future. The school were sceptical about this, given the lack of clarity that there had been up to this point, and confirmed her dismissal.
The Court of Appeal found that this was unfair dismissal and amounted to disability discrimination. It found that the school was wrong to press ahead with the dismissal once it had received medical evidence at the appeal hearing that suggested that the employee might be able to return in the relatively near future.
- If a long term sick employee says that s/he will be able to return shortly you should investigate this and obtain medical information before making any final decisions.
- For it to be fair to dismiss you would usually need to show that the ongoing absence was causing some level of disruption to your business.
- Given the real possibility of disability discrimination claims, we strongly recommend that you seek our advice before dismissing any long term sick employees.